A decision by the U.S. Supreme Court on Arizona’s anti-illegal immigration law could have ramifications for Farmers Branch’s rehearing request on the city’s ordinance that bans illegal immigrants from rental properties.

The Arizona and Farmers Branch cases have key parallels. Both cases focus on the pre-emption argument that federal law overrules state and local law.

The high court’s ruling on the Arizona law could come as soon as Monday, and a decision there could pave the way for lower court rulings in similar cases, legal experts said.

At issue in Arizona are four sections of the state’s legislation, covering law enforcement to employment. The most publicized is a requirement that local law enforcement officials check the immigration status of people they stop if there is reasonable suspicion the person isn’t in the U.S. legally. Another section makes it a crime for illegal immigrants to work or to solicit work in Arizona. The mission, as the law states, is “attrition through enforcement.”

The Farmers Branch case focuses on an ordinance requiring all renters to get an occupancy license after proving they are legally in the United States. Landlords found in violation can have their business license suspended. Offenses are classified as Class C misdemeanors — the lowest level on a criminal, rather than civil, ladder.

The ordinance has been blocked at every level in federal courts, most recently by a majority opinion from a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans. The city of Farmers Branch wants a rehearing on the case, which has cost the city $4.85 million in legal fees through May.

Southern Methodist University law professor George Martinez said both cases are historic, with potentially broad impact.

“It is going to be a major change in the law,” he said. “That is why the Fifth Circuit will wait.”

Both cases dig deep into pre-emption doctrine, but its application can be like citing Bible scriptures, some law professors said.

“Case law on pre-emption is fairly confused, and, therefore, anybody can pick out language in most any case to support their position,” said Steve Yale-Loehr, a law professor at Cornell University in New York.

Kevin Johnson, dean of the University of California-Davis Law School, calls it a “legal procedure only law professors can love.”

Comparing the cases

There were some sharp contrasts to oral arguments in the two cases.

In New Orleans, appeals court Judge Thomas Reavley, who wrote the majority opinion against Farmers Branch, praised illegal immigrants.

“Here we are on a border with a great nation and we have over 12 million of their people in our country, and they are called criminals and technically they are.” Reavley said. “But if there was a criminal that should be understood and respected and be grateful for, it is those individuals.”

In the Arizona case, emotion swerved in another direction.

“If, in fact, somebody who does not belong in this country is in Arizona, Arizona has — has no power?” asked Justice Antonin Scalia. “What does sovereignty mean if it does not include the ability to defend your borders?”

The U.S. government is challenging the Arizona law. In Farmers Branch, the U.S. government has filed a friend-of-the-court brief supporting the groups challenging the city ordinance.

Kris Kobach is the architect of many pieces of anti-illegal immigration legislation around the nation. He is now the Kansas secretary of state and is co-counsel for Farmers Branch, a city of about 29,000. His opponents include legal teams from the American Civil Liberties Union and the Mexican-American Legal and Education Defense Fund (MALDEF), two civil-rights organizations also involved in the Arizona litigation.

Another distinction is the singular focus in Farmers Branch on immigration and housing. But the Farmers Branch litigation challenges it on profiling grounds, too. The Arizona case doesn’t have such arguments.

Kobach defends the Farmers Branch legislation he crafted: “Every tenant must get a license. It would be virtually impossible to bring a profiling claim on the Farmers Branch ordinance.”

Rival attorney Bill Brewer, of the Dallas-based Bickel & Brewer Storefront, which represents a portion of the litigants, said, “We believe the evidence is overwhelming that the purpose and the effect was discriminatory … was to re-engineer the ethnic composition of Farmers Branch,” Brewer said.

What about profiling?

Some find the federal government’s aversion to tackling profiling puzzling. Johnson, the California law school dean, said the Obama administration may have wanted to avoid “inflaming” discrimination claims in a presidential election year.

The balance-of-powers arguments between the federal government and a state government might have been enough to chew on, he said.

“Strategically, a lawyer could say that I would rather deal with pre-emption,” Johnson said.

Barbara Hines, a University of Texas at Austin law professor, said the issue may not be as much about the law as about people. And that issue could come before the courts soon in profiling litigation related to immigration laws and ordinances.

“This is about changing demographics,” she said. “That is not always clearly laid out here.”

KEY QUOTES: Highlights from trials

The U.S. Supreme Court is expected to rule on an incendiary issue this month — the anti-illegal immigration law in Arizona covering law enforcement and work issues. The Fifth U.S. Circuit Court of Appeals in New Orleans is expected to make an important decision soon after on a Farmers Branch case dealing with rental ordinances. A key issue in both: whether a state or local government can override the federal power to regulate under the Supremacy Clause of Article VI of the U.S. Constitution.

Here are highlights from oral arguments from D.C. and New Orleans:

On federal law’s pre-emptive nature in Fifth Circuit:

“If the Farmers Branch ordinance were a regulation of immigration, absolutely, it would be pre-empted.” — Kris Kobach for city of Farmers Branch

“This ordinance only asks for one piece of information: What is your citizenship status and can you prove to the city that you fall into their classification of lawfully present?” — Nina Perales of MALDEF on behalf of certain Farmers Branch residents

On foreign relations in Supreme Court:

“So we — we have to — we have to enforce our laws in a manner that will please Mexico? Is that what you’re saying?” — Supreme Court Justice Antonin Scalia

“No, what I am saying is that this points up why the framers made this power an exclusive national power. It’s because the entire country feels the effects of a decision — conducted by an individual state.” — Solicitor General Donald Verrilli for the U.S. government

On racial and ethnic profiling in Supreme Court:

“No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” — Supreme Court Chief Justice John G. Roberts

“There is not. If you have a passport, there is a database if you look at passports. …there is no reliable way in the database to verify that you are a citizen, unless you are in the passport database. So you have lots of circumstances in which people who are citizens are going to come up no match.” — Solicitor General Donald Verrilli

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